An essential case in support of Elena Kagan's suitability for that Supreme Court seat

Could Justice Kagan, say, bring Anthony Kennedy to his senses?

by Ken

In my opinion, any aspersions henceforth cast on the suitability of Elena Kagan for the Supreme Court need to be cast in acknowledgment of a crucial case made on HuffPost on her hehalf a couple of weeks ago, when she was merely on the short list for the nomination, by Lawrence Lessig ("A Case for Kagan"), who is unapologetically clear that she's a longtime friend as well as colleague and even, at Harvard, boss.

I've made it pretty clear that I'm in the agnostic-at-best camp regarding the brilliant but (the way I see him) slick and shifty Lessig, and in this very piece he describes two grindingly dismal ideological hacks, his old Chicago chums Richard A. Posner and Cass Sunstein, as respectively "perhaps the greatest judge of our time" and "possibly the brightest legal scholar of our time." (Does the Chicago climate somehow lend itself to ideological crossdressing?)

With regard to the progressivism of his old pal Dean Kagan's beliefs, the self-described "liberal" Lessig offers this decidedly quicksandy paragraph:

The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, "What would be the best answer?" to any particular question, but instead, "What is the answer of fidelity?" Or again, what is the answer that most faithfully applies the law of the different generations of our Framers -- the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I'm not sure that "liberals" on the Court have always accepted this framing. Certainly Douglas and Holmes didn't feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood's opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.

Nevertheless, nevertheless . . . I never suggested the guy isn't wicked smart, and he's got some seriously important points to make. For the record, though, he's well persuaded via that long acquaintance of the progressivism of her views, and later in his piece he devotes considerable attention to the supposed documentation of Kagan's nonprogressive views, which he argues are merely "inferences that suggest a different Kagan" but that fail to distinguish between what her own views might be an the requirements of the roles she occupied at the times in question, as an adviser to President Clinton, for example, where the context was his agenda, or as the dean of a major law school, where she was required to represent the collective will of the school, or indeed now as solicitor general, who "is not philosopher in chief" but is hired " to defend the government so long as a defense is constitutionally plausible." In effect, he's suggesting that a fictional Elena Kagan has been created from these serially inappropriate inferences, and I'm inclined to agree that the people who have already condemned her really know next to nothing about her.

Of course for the point Lessig is about to make we need to be satisfied about her progressive bona fides, but it's such an interesting and potentially decisive point that I think it needs aat least to be heard:

I believe there's an aspect to Kagan's experience that sets her apart from others on the short list. Kagan has had practical strategic experience. Her most important work over the past two decades has been in contexts where she has had to move people to see things as she did. And through that experience, she has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn't mean triangulating. It doesn't mean "compromise." It means finding a way to move others to the answer you believe is right.

This is the single feature the liberal side of this conservative court lacks most. Even Justice Stevens was too quick to run off to a corner to write his universally brilliant dissents from insane majorities. Breyer too too often seems content in his law professor way to write an opinion that sounds good when read aloud to himself, but in light of the evolving jurisprudence of the Court, is tone deaf to the view of others. Too many of our progressive colleagues swing for the bleachers of history, rather than victories now. Too many are content with simply knowing that their liberal law professor friends are busy praising their opinions in constitutional law classes rather than fighting to find a way to split the ideologues on the right with their own principles and rhetoric.

Again, I'm not talking about triangulating. The point is not that we need someone who knows how best to compromise. The point instead is that we need a justice with the energy and strength to use the legal materials provided by the other side to advance the right answer.

And he backs this up with a case that he himself argued and lost in the Supreme Court, Eldred v. Ashcroft.

The issue in that case was Congress' power to extend the term of existing copyrights. We argued (and historians in the case confirmed) that these repeated extensions (11 times in the prior 40 years) were inconsistent with the Framers' understanding of a clause that gave Congress the power to grant copyrights "for limited times." Nonetheless, seven justices upheld the extension, with the five conservatives sitting silent in the face of an originalist argument about how Congress was exceeding its enumerated powers -- just the sort of argument that seemed to excite those 5 conservatives, at least when the underlying issue was, well, conservative.

Stevens and Breyer dissented. But neither even tried to engage the conservatives on the other side. Stevens can be forgiven for that; after thirty years, a justice has the right to simply state his or her beliefs. But Breyer had no such excuse. His opinion read more like an article in an economics journal: brilliant, and right, but adopting a method of reasoning that literally no one else on that Court was going to follow. No doubt, if you think you're writing for history, that's fine. But if you're trying to leverage argument to get 5 votes for the right answer, this sort of opinion is simply self-indulgence.

Breyer's weakness points to a general weakness in appointing law professors to high courts. We law professors -- especially at places like Harvard or Yale -- spend too much of our time worrying about abstract right, not practical right. We're skilled in working out the very best theory. We're not very good at figuring out how to engineer an argument to the best result. We're the opposite of a politician, though we have just as many sins: Politicians care too little about what is right, and too much about getting the deal. Law professors care too much about what is right, and care too little about the strategy for getting what is right. No law professor praises Earl Warren (who engineered arguably the most important opinion of right in the 20th century -- Brown v. Board of Education), or even Brennan with true feeling. The real heros are the great dissenters -- Holmes most prominently.

Lessig drives the point home with the effortless eloquence and piercing debating skill that are the delight of his fans and the caution of us not-persuadeds:

[T]he core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side. Those were the reports of her work inside the Clinton administration (Clinton's nickname for her: "Judge"). Many describe her success at remaking a radically diverse law school (the Harvard I've returned to is not the Harvard I left). I've seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.

In a line: She marries the brilliance and strength of the very best Justices, a practical skill not of compromise but argument, and deep experience inside the executive branch. It is a broad base of experience, producing an understanding of what is possible, and skill to produce what is right.

And this peerless debater's conclusion is pretty crushing:

The bottom line calculus for me in this case could not be clearer. Obama's second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It's not enough to appoint someone who will cast the right vote. We need someone who will make majorities.

Considering how little Kagan's detractors actually know about her, and how much Professor Lessig does, I think at the very least has to account for his arguments.


MEANWHILE, A DIFFERENT SORT OF CASE EITHER
FOR OR AGAINST PROGRESSIVE SUPPORT OF KAGAN

Alternet has helpfully reposted (as "Good News: Kagan May not Be a Giant Shill for State Power") a No More Mister Nice Blog post today by Steve M., "If Kagan doesn't really worship state power, does that mean she's doomed?," which makes an utterly seductive case either for or against -- depending on your shading of the moment -- progressive support for the Kagan nomination. After noting some indications that (just as Larry Lessig is insisting) Kagan has been wildly mischaracterized for us, Steve wanders into some breathtaking speculation. I can't begin to tell you how much I admire its around-the-bend twistiness:

[T]he White House assumes, probably correctly, that criticism of Kagan from the left makes it much easier to confirm her -- nobody in the political mainstream (pols ot the press) cares what we think, except to the extent that if we're yelling about it, they assume that being on the other side must be the reasonable point of view.

And now, if we start holding our fire, she's probably going to have a tougher confirmation battle -- because, after all, if righties are yelling about something, their concerns have to be taken very, very seriously. Ask any mainstream pundit. Ask any Democratic senator from a non-coastal state.

And righties are sitting up and taking notice of this -- already at the Daily Caller we have "Supreme Court Nominee Elena Kagan Compared Republican Terrorism Proposal to 'Dictatorships,'" and that instantly got a link at Fox Nation (in a multi-story thread titled "Kagan Booted Recruiters, Linked GOP Terror Proposal to 'Dictatorships,' Wrote Thesis on Socialism" -- oh, and please note that the thesis is being cited, as I've been predicting).

It's Rupert Murdoch's country and we just live in it, so I think we're not going to split the difference and say Kagan has angered both left and right on issues of state power. I think this hurts her. I think the McCain/Lieberman/Graham joint press conference opposing her nomination is probably only days away.

Wow! Is that deep, or what? Think about it -- if you dare.

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